1. Mario Cerkez, an appellant before the Appeals Chamber (“Applicant”),1
has filed a motion for access to the confidential supporting material filed
with the indictment in the present case.2 The
confirming judge had ordered its non-disclosure in accordance with Rule 53
of the Rules of Procedure and Evidence (“Rules”).3
The Applicant seeks an order from this Trial Chamber for the disclosure of
that material, on the basis that such disclosure will be of assistance to
him in his appeal.4

2. The Applicant asserts that the indictment in the present case deals with
events and facts closely related to his case.5
He explains that, at his trial, he attempted but failed to produce evidence
that , contrary to the prosecution case, what appears to be ABiH units under
the command of one or more of the persons charged in the present case were
direct opponents of the HVO units under his command, at the time and at the
places in the Lasva Valley area defined in both the indictment against him
and the indictment in the present case. One ABiH document recently produced
by the prosecution pursuant to Rule 68 , from a different source but emanating
from the ABiH involved in the present case , is directly contrary to the evidence
given on this issue by a prosecution witness at the Applicant’s trial and
which had been accepted by the Trial Chamber.6
The material in the present case, he says, is relevant and important to the
issues of, for example, mens rea and the protected person status of
the victims, which were found against him.7 It
was his case that the forces under his command were involved in an armed conflict
with the ABiH forces in the Lasva Valley area, and that they were not engaged
in an attack upon the civilian population as alleged by the prosecution and
found by the Trial Chamber to have been established.

3. It is submitted by the Applicant that the supporting material in the
present case “must” contain additional evidence relating to these issues,
which are on appeal ,8 and he will seek to have
that evidence introduced on appeal pursuant to Rule 115.9
An equality of arms argument is also raised as a basis for having the same
access to the supporting material as the prosecution has.10
The Applicant states that, if granted access, he will fully respect any order
made by the Trial Chamber to ensure the continued confidentiality of the supporting
material .11 In its Response to the Motion ,12
the prosecution opposes the relief sought.

4. The prosecution submits that the Applicant is not entitled to general
access to all the supporting material in the present case.13
Pursuant to its continuing obligation under Rule 68, the prosecution says
that it has reviewed the supporting material in the present case, but it has
found no exculpatory evidence.14 The prosecution
has, however, disclosed to the Applicant certain documents – apparently part
of the supporting material – “which appear to generally fall within the type
of material which Sthe Applicant hasC requested”.15
The prosecution has not explained what that phrase was intended to mean, and
its precise meaning remains opaque. This disclosure occurred only after the
present Motion had been filed. The prosecution suggested that it had done
so because it “may assist in expediting the proceedings”, but made it clear
that, by doing so, it was “neither conceding that any of the material falls
within the purview of Rule 68, nor adopting a practice that the Prosecution
will necessarily follow in other instances”.16

5. It is submitted by the prosecution that, in order to gain access to documents
which do not fall within Rule 68, the Applicant must, first, identify exactly
the material of which production is sought and, secondly, clearly state the
“legitimate forensic purpose” for which the production of the material is
sought.17 With respect to the second criteria,
the prosecution has submitted that, where the purposes for which access to
the confidential supporting material is sought are the same as or coincide
with the purposes for which the Rule 68 review was conducted , the Applicant
cannot be granted access to the material unless it is shown that the prosecution
has abused its discretion under that Rule.18
The prosecution says that the justification put forward by the Applicant to
obtain the access sought is closely connected with arguments which the Applicant
may raise on appeal, and that these arguments have already been taken into
consideration by the prosecution in the course of its Rule 68 review.19
The prosecution therefore argues that the Applicant’s Motion does not satisfy
the requirements for obtaining such access. He has failed to specify the documents
or categories of documents, and the reasons he has cited are generic in nature
and closely connected with his grounds of appeal, already falling within the
purposes of the Rule 68 review conducted by the prosecution.20
Finally, it is submitted that the principle of equality of arms cannot provide
any legal basis for the Motion.21

6. In reply to the Response, the Applicant essentially repeats the submissions
made in his Motion. He reiterates that he is not seeking access to the relevant
material on the basis of Rule 68,22 but for the
purposes of Rule 115.23 He also submits that
both the criteria nominated by the prosecution have been met.24
The prosecution has indicated orally that it does not wish to file a further
response to that Reply.

2. Jurisdiction

7. A preliminary issue which arises is whether the Trial Chamber has jurisdiction
to deal with the Motion. Neither Rule 6925 nor
Rule 75(D)26 expressly gives to the Trial Chamber
jurisdiction to deal with the Motion. These Rules concern protective measures
in respect of victims and witnesses issued by a Chamber; they do not concern
non-disclosure orders issued by a confirming judge pursuant to Rule 53 in
respect of supporting material, which may include witness and victim statements.
On its face, Rule 53 does not expressly authorise this Trial Chamber to deal
with such orders issued by a confirming judge with a view to varying or rescinding
them.

8. However, common sense dictates that, upon its assignment to a Trial Chamber,
the whole of the case, including the supporting material originally put before
the confirming judge, comes under its authority. Rule 66 and the practice
relating thereto evidence this.27 For example
, in disputes relating to the confidentiality of supporting material – in
particular , in relation to the redaction of the material in part or in whole –
to be disclosed by the prosecution pursuant to Rule 66(A)(i), it has never
been suggested that the Trial Chamber has no jurisdiction to deal with that
material because the non-disclosure order had originally been made by the
confirming judge. To hold that the original confirming judge has or ought
to have exclusive power to deal with confidentiality matters relating to supporting
materials even after the assignment of the case to a Trial Chamber would lead
to an absurd result which would hinder the effective administration of justice.
In addition, Rule 53(C), in providing that a Trial Chamber may also deal with
non-disclosure matters relating to supporting material, recognises the necessary
jurisdiction of an assigned Trial Chamber to deal with non-disclosure matters
originally dealt with by a confirming judge.

3. Discussion

9. The issues raised by the Applicant in this Motion (as an appellant, rather
than an accused person awaiting trial) do not appear to have been dealt with
before in the Tribunal. The Trial Chamber is of the view that the principles
to be applied are, by analogy, those relating to the granting of access by
any accused person awaiting trial to confidential material (whether or not
of a supporting nature) in a different case. The entitlement of such an applicant
to disclosure as of right from the prosecution of material relating to his
own and other cases is defined solely by Rule 68.28
For example, the prosecution would not be obliged automatically to disclose
to such an applicant material which, though not falling within the terms of
Rule 68, is covered by Rule 115.

10. However, a party is always entitled to seek material from any source
to assist him in his case. If the present case had been concluded before the
Applicant’s trial had commenced, he would have been entitled, in the similar
circumstances of the two cases, to have sought access to any material which
remained confidential in such trial, provided that he was able:

(i) to identify the documents sought or to describe them by their general
nature, and

(ii) to show a legitimate forensic purpose for such access.

The position should be no different because the present case has only just
been commenced. If the party seeking access to the documents which are presently
confidential mainly because the trial has not yet been commenced is able to
show a legitimate forensic purpose, he should be granted access to them, subject
only to the imposition of appropriate protective measures.29

11. As to the first of those requirements, the Trial Chamber does not accept
the submission of the prosecution that such a party has the onus of identifying
“exactly what material he seeks”.30 The obiter
remark by the Appeals Chamber upon which the prosecution relies, relating
to requirements to be satisfied for a request under Rule 75(D), is inapplicable
to an application for access such as the present one. The Trial Chamber is
of the view that such a standard is too high for such a purpose. An applicant
seeking access who is able to show a legitimate forensic purpose for that
access cannot be expected to identify exactly what material he needs
if he does not know (due to confidentiality orders) what form that material
is in or what its exact nature is. The underlying reason for requiring an
identification of the documents or of the nature of the documents sought is
to prevent an accused or applicant from conducting a “fishing expedition” –
that is, seeking access to material in order to discover whether he has any
case at all to make.31 It is a sufficient onus
to require the party to identify as clearly as possible the documents or the
nature of the documents to which he seeks access. As to the second of those
requirements, that the party must show a legitimate forensic purpose for seeking
access, he must show that such access would be likely to assist his case materially,
or that there is at least a good chance that it will give that assistance.32

12. Because of the similar circumstances with which the Applicant’s case
and the present case deal, and what appears on the face of the two indictments
to be directly opposing allegations made by the prosecution in each of them,
this is manifestly not a fishing expedition by the Applicant, as the
prosecution appears to be arguing.

13. The prosecution appears to be concerned that the Motion is a disguised
attempt to circumvent the prosecution’s initial discretion under Rule 68.
The Trial Chamber does not accept that this is so. It rejects the prosecution’s
submission that, where the purposes for which access is sought to confidential
material are the same or coincide with the purposes of a Rule 68 review, a
party cannot be granted access to the remaining material unless it is shown
that the prosecution abused its discretion under that Rule. The prosecution
does not control the access which a party may have to material available
within the Tribunal.33 Nor, unfortunately, has
the prosecution always complied with its obligations under Rule 68 in a timely
manner.34 In any event, the range of material
within the Tribunal to which a party may legitimately seek access may well
be wider in the particular case than the class of documents which must be
disclosed pursuant to Rule 68. It is certainly not for the prosecution to
attempt to categorise them in a way which avoids its obligation, as a Minister
of Justice, to assist the defence to present its case where a legitimate forensic
purpose has been established.35

14. The Applicant does not seek access to the confidential supporting material
pursuant to Rule 68. This is a complete red herring laid by the prosecution.
Access is sought for the purposes of Rule 115, which concerns the admission
of additional evidence before the Appeals Chamber. To be considered as additional
evidence within the meaning of Rule 115, the material sought to be admitted
must relate to facts or issues litigated at the trial. The Trial Chamber is
satisfied that the material sought by the Applicant in the present case sufficiently
relates to facts and issues litigated at the trial as to warrant access being
granted, subject only to the imposition of appropriate protective measures.
Indeed, the prosecution emphasises that this is so by arguing, for a different
purpose, that the reasons advanced for the access sought are closely related
to the grounds of appeal.

15. For the foregoing reasons, the Trial Chamber considers that the Motion
should be granted. In those circumstances, it is unnecessary to deal with
the Applicant’s argument based upon his right to an equality of arms. That
argument can await another day. However, the prosecution must be given an
opportunity to file written submissions on the confidentiality measures that
should reasonably be imposed on the Applicant.

4. Disposition

16. Pursuant to Rule 54, the Trial Chamber makes the following determinations:

(a) The Motion is granted. Subject to a determination of the appropriate
protective measures to be imposed, the Applicant will be granted access to
the confidential supporting material in the present case which has not already
been disclosed to him.

(b) The prosecution is to file within fourteen days a written submission
identifying the confidentiality measures which it seeks to have imposed on
the Applicant.36 The Applicant is to file a response
within seven days of the prosecution’s filing , indicating whether he agrees
with the proposed measures or, in the event that he does not, the reasons
for his opposition. No reply to that response will be entertained unless leave
is granted to file a reply.

Done in both English and French, the English version being authoritative.

Done this the 10th day of October 2001

At The Hague

The Netherlands

________________________________

Judge David Hunt

Presiding Judge

[Seal of the Tribunal]

1 - Prosecutor v Kordic and Cerkez, Case IT-95-14/2-A.
2 - Prosecutor v Kordic and Cerkez, Case IT-01-47-PT,
Defendant Mario Cerkez’s Motion for Access to Confidential Supporting Material
in Hadzihasanovic et al Case, 8 Sept 2001 [filed 10 Sept 2001] (“Motion”).
The Motion should have been filed in the present case (using both its title
and its number), and not in the case presently before the Appeals Chamber: Prosecutor v
Brdjanin and Talic, Case IT-99-36-PT, Decision on Second Motion by Momir
Talic for Access to Confidential Documents, 26 June 2001, par 2; Prosecutor v
Dragan Nikolic, Case IT-94-2-PT, Decision on Request Pursuant to Rule 75(D)
by Prosecution in Prosecutor v Momcilo Krajisnik & Biljana Plavsic (Case
IT-00-39&40-PT), 16 July 2001, par 3. The Applicant was directed by the Pre-Appeal
Judge in Prosecutor v Kordic and Cerkez, Decision on Application by Mario
Cerkez for Access to Confidential Material from Prosecutor v Hadzihasanovic
et al and Order Compelling Prosecution to Produce Rule 68 Material, 7 Sept
2001, to seek an order granting him access to the said material from this Trial
Chamber. 3 - Prosecutor v Hadzihasanovic and Others, Case IT-01-47-I,
Under Seal, Order on Review of the Indictment Pursuant to Article 19 of the
Statute and Order for Non-disclosure, 13 July 2001. Rule 53 (“Non-disclosure”,
falling within Part Five: Pre-Trial Proceedings) relevantly provides: “(A) In
exceptional circumstances, a Judge or a Trial Chamber may, in the interests
of justice, order the non-disclosure to the public of any documents or information
until further order. […] (C) A Judge or Trial Chamber may, in consultation
with the Prosecutor, also order that there be no disclosure of an indictment,
or part thereof, or of all or any part of any particular document or information,
if satisfied that the making of such an order is required to give effect to
a provision of the Rules, to protect confidential information obtained by the
Prosecutor, or is otherwise in the interests of justice. […].” 4 - Motion, p 2. 5 - Motion, par 2. 6 - Ibid, par 3; Defendant Mario Cerkez’s Reply to
Prosecution Response to Defendant Mario Cerkez’s Motion for Access to Confidential
Supporting Material in Hadzihasanovic et al Case, 27 Sept 2001 (“Reply”),
par 7. 7 - Motion, par 3. 8 - Ibid, par 3. 9 - Ibid, par 4. Rule 115, relevantly provides: “(A) A
party may apply by motion to present before the Appeals Chamber additional evidence
which was not available to it at the trial. […] (B) The Appeals Chamber shall
authorise the presentation of such evidence if it considers that the interests
of justice so require.” 10 - Motion, par 6. 11 - Ibid, par 5. 12 - Prosecution’s Response to the Motion entitled “Defendant
Mario Cerkez’s Motion for Access to Confidential Supporting Material in Hadzihasanovic
et al Case”, 24 Sept 2001 (“Response”). 13 - Response, par 9. 14 - Ibid, pars 10, 13-16. Rule 68 (“Disclosure of
Exculpatory Material”) provides: “The Prosecutor shall, as soon as practicable,
disclose to the defence the existence of material known to the Prosecutor which
in any way tends to suggest the innocence or mitigate the guilt of the accused
or may affect the credibility of prosecution evidence.” 15 - Response, pars 10, 16, 19 and Annex A thereto (letters
to counsel of the Applicant and his co-Appellant Dario Kordic). 16 - Ibid, Annex A. 17 - Response, pars 18, 20-23. It is asserted that the “scope
of application of this avenue [outside the confines of Rule 68] should logically
be confined to the remaining supporting material”, that is the supporting material
which the prosecution has not disclosed to the Applicant because it does not
fall within Rule 68 (Response, pars 11 fn 9, 19). The Applicant concedes that
this is so (Reply, par 5). 18 - Response, par 25. 19 - Ibid, par 27. 20 - Ibid, par 28. 21 - Ibid, pars 33-34. 22 - Reply, pars 2 and 3. 23 - Ibid, par 8 and 9. 24 - Ibid, par 6-10. 25 - Rule 69 (“Protection of Victims and Witnesses”, falling
under Part Five: Pre-Trial Proceedings) provides: “(A) In exceptional circumstances,
the Prosecutor may apply to a Trial Chamber to order the non-disclosure of the
identity of a victim or witness who may be in danger or at risk until such person
is brought under the protection of the Tribunal. (B) In the determination of
protective measures for victims and witnesses, the Trial Chamber may consult
the Victims and Witnesses Section.” 26 - Rule 75 (“Measures for the Protection of Victims and
Witnesses”, falling under Part Six: Proceedings before Trial Chambers) relevantly
provides: “(D) Once protective measures have been issued in respect of a victim
or witness, only the Chamber granting such measures may vary or rescind them
or authorise the release of protected material to another Chamber for use in
other proceedings. If, at the time of the request for variation or release,
the original Chamber is no longer constituted by the same Judges, the President
may authorise such variation or release, after consulting with any Judge of
the original Chamber who remains a Judge of the Tribunal and after giving due
consideration to matters relating to witness protection.” 27 - Rule 66 (“Disclosure by the Prosecutor”) relevantly
provides: “(A) Subject to the provisions of Rules 53 and 69, the Prosecutor
shall make available to the defence in a language which the accused understands
(i) within thirty days of the initial appearance of the accused, copies of the
supporting material which accompanied the indictment when confirmation was sought
[…].” 28 - Rule 66 would of course be irrelevant to an applicant
seeking access to supporting material relating to another case. 29 - The nature of the protective measures which would be
appropriate is discussed in some detail in Prosecutor v Brdjanin and Talic,
Second Decision on Motions by Radoslav Brdjanin and Momir Talic for Access to
Confidential Documents, 15 Nov 2000, pars 8-13. They need not be referred to
here, but they provide a powerful protection to witnesses and other persons
identified in those documents. 30 - Response, par 22, in reliance on Prosecutor v Blaskic,
Case IT-95-14-A, Decision on the Appellant’s Motions for the Production of Material,
Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 Sept
2000, par 55. 31 - Prosecutor v Delalic and Others, Case IT-96-21-A,
Separate Opinion of Judge David Hunt on Motion by Esad Landzo to Preserve and
Provide Evidence, 22 Apr 1999 (appended to Decision on Motion to Preserve and
Provide Evidence, 22 Apr 1999) (“Separate Opinion”), par 4, a statement which
the prosecution adopts (Response, par 22, fn 18). 32 - Prosecutor v Brdjanin and Talic, Decision on
Motion by Momir Talic for Disclosure of Evidence, 27 June 2000, par 7; Decision
on Motion by Momir Talic for Access to Confidential Documents, 31 July 2000,
pars 5-8. The prosecution has relied upon these statements in its Response (par 23,
fn 20). It also refers to par 4 of the Separate Opinion, which said: “It should
be demonstrated that it is likely – or at least ‘on the cards’ – that the material
produced will materially assist the case of the party seeking access”. 33 - Prosecutor v Brdanin and Talic, Decision on Motion
by Momir Talic for Access to Confidential Documents, 31 July 2000, par 6. 34 - The document recently produced by the prosecution pursuant
to Rule 68 (see par 2, supra) had been in the possession of the prosecution
since October 2000: Prosecutor v Kordic and Cerkez, Decision on Second
Motions to Extend Time for Filing Appellant’s Briefs, 2 July 2001, pars 7-10.
The documents only now produced, and notwithstanding the disclaimer that they
do not fall within Rule 68, have been in the possession of the prosecution at
least since the indictment in this present case was filed for confirmation in
July of this year, and no doubt for a considerable period beforehand. 35 - Prosecutor v Blaskic, Decision on the Appellant’s
Motions for the Production of Material, Suspension or Extension of the Briefing
Schedule, and Additional Filings, 26 Sept 2000, par 32, footnote 23; Prosecutor v
Kordic & Cerkez, Decision on Motions to Extend Time for Filing Appellant’s
Briefs, 11 May 2001, par 14, footnote 25; Prosecutor v Brdjanin and Talic,
(Confidential and Ex Parte) Decision on Rule 66(C) Application, 3 Oct
2001, par 8. 36 - See the case cited in fn 29.